Gause v Alderson

Case [2024] NSWCA 312


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Gause v Alderson [2024] NSWCA 312
Hearing dates: 29 November 2024
Date of orders: 20 December 2024
Decision date: 20 December 2024
Before: Mitchelmore JA at [1];
Stern JA at [2];
Price AJA at [114].
Decision:

(1)   Appeal dismissed.

(2)   Cross-appeal allowed.

(3)   The appellant to pay the respondents’ costs of the appeal and cross-appeal.

(4)   The parties are to take reasonable steps to agree short minutes of order as to what further orders should be made to reflect the respondents’ success on the cross-appeal which should be filed by 5 February 2025. Failing agreement:

(a)   The respondents to file submissions of no more than 3 pages in support of their proposed orders by 4 pm on 7 February 2025; and

(b)   The appellant to file submissions of no more than 3 pages in support of their proposed orders by 4 pm on 12 February 2025.

Catchwords:

NEGLIGENCE - breach – discrete or hidden risk – where risk of a non-operational smoke alarm was foreseeable and highly significant – where precautions were not onerous

NEGLIGENCE – intoxication – where relevant conduct or activity was being asleep in home – whether there was impairment of capacity to exercise reasonable care and skill due to intoxication

APPEALS - from finding of fact - credibility of witnesses – where primary judge observed the appellant giving evidence - primary judge entitled to make adverse credibility findings

Legislation Cited:

Civil Liability Act 2002 (NSW), s 50

Compensation to Relatives Act 1897 (NSW)

Evidence Act 1995 (NSW), s 140(2)

Interpretation Act 1987 (NSW), s 8(b)

Cases Cited:

Alderson v Gause [2024] NSWDC 152

Amanda’s On The Edge Pty Ltd v Dries [2011] NSWCA 358

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Browne v Dunn (1893) 6 R 57

Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

J and E Vella Pty Ltd v Hobson [2023] NSWCA 234

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225

Payne trading as Sussex Inlet Pontoons v Liccardy [2023] NSWCA 73

Roads and Traffic Authority v Royal [2008] HCA 19

Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19

Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53

Scott v Scott [2022] NSWCA 182

Category:Principal judgment
Parties: James Gause (Appellant / Cross-Respondent)
Tamara Alderson (First Respondent / First Cross-Appellant)
Narelle Heafey (Second Respondent / Second Cross-Appellant)
John Heafey (Third Respondent / Third Cross-Appellant)
Elijah…

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AGLC
Gause v Alderson [2024] NSWCA 312
Case
[2024] NSWCA 312
Decision Date

CaseChat Overview and Summary

In *Gause v Alderson*, the Court of Appeal of Tasmania considered an appeal and cross-appeal concerning a finding of negligence. The dispute arose from a fire at the respondent's home, which resulted in significant damage and injury. The appellant, who was asleep in the home at the time of the fire, was alleged to have been negligent in failing to ensure the smoke alarm was operational, thereby contributing to the severity of the fire and its consequences.

The primary legal issues before the Court of Appeal were whether the primary judge erred in finding that the appellant had breached their duty of care to the respondent, and whether the primary judge erred in finding that the appellant's intoxication did not impair their capacity to exercise reasonable care and skill. The court also considered whether the primary judge was entitled to make adverse credibility findings against the appellant based on their demeanour when giving evidence.

The Court of Appeal upheld the primary judge's finding of negligence, reasoning that the risk of a non-operational smoke alarm was foreseeable and highly significant, and that the precautions required to mitigate this risk were not onerous. The court found that the appellant's intoxication was not a relevant factor in assessing their capacity to exercise reasonable care and skill in the context of being asleep in their home. Furthermore, the court affirmed the primary judge's entitlement to make adverse credibility findings, given that the judge had the opportunity to observe the appellant giving evidence.

The appeal was dismissed, but the cross-appeal was allowed. The appellant was ordered to pay the respondents’ costs of both the appeal and the cross-appeal. The parties were directed to take reasonable steps to agree on further orders reflecting the respondents’ success on the cross-appeal, with a process for submissions outlined should agreement not be reached.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Cross-appeal allowed.

(3) The appellant to pay the respondents’ costs of the appeal and cross-appeal.

(4) The parties are to take reasonable steps to agree short minutes of order as to what further orders should be made to reflect the respondents’ success on the cross-appeal which should be filed by 5 February 2025. Failing agreement:

(a) The respondents to file submissions of no more than 3 pages in support of their proposed orders by 4 pm on 7 February 2025; and

(b) The appellant to file submissions of no more than 3 pages in support of their proposed orders by 4 pm on 12 February 2025.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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